Tag: FAA

The Right to Watch?

I’ve always defended the right to photograph in public places. However, a number of cases in the last few weeks are highlighting an important new development in this area, a new front in the increasingly confusing information wars. Gary Marx always like to say that surveillance is neither good nor bad but that intent, circumstances, and effects make it so, but a growing number of people and organizations seem to be treating surveillance – or at least watching, and certainly not all watching is surveillance – as a right which supersedes rights to privacy. We’ve seen this in the case of Google Glass – even before it was launched commercially – and more recently with the arguments over the ‘right to be forgotten’ in Europe, with personal privacy being counterposed to freedom of information and actions to protect privacy being compared to censorship. It’s all somewhat reminiscent of Dave Eggers’ novel, The Circle, in which a Facebook-Google-Apple-a-like company completely turns around social values until, as one of the corporate slogans has it, “PRIVACY IS THEFT!”

The latest case is that of the use of drones / micro-UAVs / MAVs in the USA. The Federal Aviation Authority (FAA), the government body that controls US airspace, is trying to regulate the use of drones and has attempted to fine commercial drone operators who fly surveillance drones without their permission. The case revolves around one Robert Pirker, who used an unlicensed drone to film a promotional video back in 2011. At the moment the FAA is appealing against the National Transportation Safety Board (NTSB), who rule that it could not fine Pirker as it did have jurisdiction over small drones. Now the media has weighted in on Pirker’s side, arguing that the FAA’s stance infringes the first amendment and creates a ‘chilling effect’ on journalism.

I’m really not sure about either argument. On the FAA side, this is partly about a bureaucracy trying to keep control of its regulatory territory as much it is about the object of the regulation – the FAA does not want to be seen to be losing control just as the number of small drones is increasing massively.

On the other side, is this really about the rights of journalists? Pirker was making a commercial film not covering a story, and the effect of the FAA’s ruling being overturned is more likely to open the door to a corporate free-for-all, an absurd PKDickian world of drones as far as the eye can see, with all the attendant crashes and legal battles, could result. Think not? Well, back in the 1900s, people thought there would never be that many cars on the roads either… so it is certainly it is partly about their mandate, i.e. air safety.

The big question here, as with Google Glass and with Search, is whether technological change makes a difference. Is a flying camera just the same as a hand-held camera? Does the greater potential for intrusion, or on the other hand the inability to know that one is being filmed, matter? Does that possibility that ‘the truth’ will be revealed justify any technological method used to obtain it? If not, which ones are acceptable, whereis the line drawn, and who decides and how? In the UK, the ‘public interest’ would be a good basis for deciding, as has been frequently alluded to in the Leveson Inquiry into telephone tapping conducted by Murdoch-owned newspapers, however ‘public interest’ is a much vaguer term in the USA… what is certain is that conflicts around the ‘right to watch’ versus the ‘right to privacy’ and other human rights and social priorities are only going to intensify.

FAA includes privacy requirements for drones, but no enforcement

The US Federal Aviation Authority released a roadmap for the introduction of drones (UAVs) into US airspace (PDF) last week. Whether it happens this way or not is a moot point as previous deadlines have been consistently missed. However, they also released a list of requirements for meeting privacy standards (PDF).

Mark Calo in Forbes says that the FAA’s plan for privacy from drone surveillance is ‘pretty sensible’, which it is if you consider that the FAA’s primary job is, as it repeats in response to comments demanding great privacy protections throughout the document, “to provide the safest, most efficient aerospace system in the world.” Marc Rotenberg has pointed out, the problem is that it wasn’t their plan but the result of external pressure from EPIC and ACLU and others.

However, the broader question is whether the FAA is the correct institution to be overseeing this process of the introduction of a technology whose main purpose is surveillance. The overall context for this is the enthusiastic support for the rollout of drones offered by the roadmap. As the FAA keeps saying, it is not a privacy regulator. Not surprisingly, this is not an organisation that has any real overall scepticism, let alone any critical attitude to what it sees primarily as aviation technologies. But of course the US doesn’t have a single independent privacy regulator as such. Even so, the FAA has conceded at least that it has some responsibility here and is insisting that operators have a publicly-accessible privacy policy, that they report annually on compliance, and that they observe relevent laws (without specifying in much detail what those are). However, the FAA won’t be actively monitoring this, let alone enforcing it or sanctioning misconduct. For example, it won’t be suspending or removing operator’s licenses if they don’t comply with their requirements, unless the Department of Justice or another law enforcement agency actually files charges against the operator. So the requirements are weak and lack teeth.

The right time to intervene to strengthen human rights in relation to threats to those rights posed by new technologies is always before they are introduced. If this is not done then the widespread use of those technologies can shift what people understand as ‘normal’ and reduce expectations of privacy (and other rights). And it is much more difficult to legislate in retrospect. We’ve seen this with public space CCTV. In other words, while technologies do not determine social relations, they will interact with people, individually and in groups, in both positive and negative ways, and the job of politics and of policy is to ensure that the positive effects are maximized and the negative ones, minimized*. This means federal regulation. However, given the way in which the US  favours private over state intervention, it’s not surprising that this is not a popular way of dealing with things there.

What will result from the FAA’s weak set of privacy requirements in drone operations without real oversight is privacy protection as a bureaucratic box-ticking exercise.

*It should also be noted that this includes the possibility of not allowing any particular technology to be used in public space if the latter cannot be minimized to a level that not be harmful to socially desirable goals. Not enough attention is paid to the possibility of just saying ‘no’ to the public use of any particular technology.